GOVERNMENT AND CIVIC EMPLOYEES ORGAN. COM. v. Windsor

• Decision Date: 09 November 1953
• Docket Number: No. 7466.,7466.
• Citation: 116 F. Supp. 354
• Parties: GOVERNMENT AND CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO et al. v. WINDSOR et al.
• Court: U.S. District Court — Northern District of Alabama

116 F. Supp. 354

GOVERNMENT AND CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO et al. v. WINDSOR et al.

No. 7466.

United States District Court, N. D. Alabama, S. D.

November 9, 1953.

Arthur J. Goldberg, David E. Feller, Thomas E. Harris, Washington, D. C., Cooper, Mitch & Black, and Jerome A. Cooper, Birmingham, Ala., for plaintiffs.

Si Garrett, Atty. Gen. of State of Alabama; M. Roland Nachman, Jr., Asst. Atty. Gen., and Jesse M. Williams, Atty., Montgomery, Ala., for defendants.

Before RIVES, Circuit Judge, LYNNE and GROOMS, District Judges.

GROOMS, District Judge.

This action is for an injunction and declaratory judgment. Jurisdiction is invoked under 28 U.S.C.A. §§ 1331, 1343 and 2201. Since the injunction sought is to restrain the enforcement, operation and execution of a statute of the State of Alabama, this court is convened pursuant to Title 28 U.S.C.A. § 2284. The statute involved is House Bill 231, known as the "Solomon Bill."¹ This statute became effective on September 18, 1953. By stipulation, the case is submitted for final decree upon the pleadings, affidavits, and testimony taken orally.

This action is filed by the Government and Civic Employees Organizing Committee, CIO, an unincorporated association, and E. J. Habshey, a clerk employed at Alabama Liquor Store No. 75, Birmingham. The defendants are J. T. Thrower, who is Chairman of the Alabama Alcoholic Beverage Control Board, William K. Thames and Maury A. McWilliams, members of the Board, R. P. McRee, Administrator of the Board, S. F. Windsor, District Store Supervisor of the Board in Birmingham, and Felix L. Parsons, Store Manager of Store No. 75.

Habshey is a member of the plaintiff union and intends to remain a member and to continue to participate in its activities. He has not acquired any insurance or other financial benefits as a result of such membership.

Several days after the passage of the Solomon Bill, defendant Parsons gave Habshey and the other employees of Store 75 a copy of the Bill. They were also shown a letter from defendant McRee requesting that they read, "understand," and initial one copy of the Bill. This copy was to be forwarded to Montgomery and another copy retained at the store. This appears to have been a routine procedure. On October 2, 1953, the union orally and by wire requested defendant McRee to advise it what enforcement steps the Board contemplated taking to enforce the Bill. McRee replied that he was directed by the Board to inform the union "that the Solomon Bill will be enforced by the Board in the same manner as the ABC Act or other pertinent laws." The following day defendant Windsor told representatives of the union that he was required to carry out any and all orders of the Board and Administrator McRee.

Habshey has been an employee of the Board for three years. His present salary is two hundred and ten dollars per month, and he has no other available means of making a livelihood. Union dues are two dollars monthly. The union has expended in excess of three thousand dollars, exclusive of interest and costs, in solicitation efforts and as organizational expense in organizing Board employees. Before the passage of the Solomon Bill, there were approximately eight hundred members of the union employed by the various agencies of the State. Included among these were two hundred employees of the Board. At this time there are about two hundred and fifty members in all State agencies. Many members of plaintiff union employed by the Board have withdrawn from membership since the passage of the Bill. The Board has never recognized the union.

No rules or regulations have been proposed or adopted interpreting or implementing the Solomon Bill. No directives or orders have been issued to supervisors, store managers, or other employees with regard to the administration of the Bill. The Board has adopted no specific policies concerning the Bill other than a general recognition of the duties to enforce all the laws of Alabama relating to the Alabama Alcoholic Beverage Control Board. Neither Habshey nor any other employee has been threatened with discharge or dismissal or deprivation of employee rights, benefits or privileges by reason of continued membership and participation in the plaintiff union. No inquiries or investigations have been made by or on behalf of the Board concerning union membership. No action has been taken by the State Personnel Board or its Director whereby any employee of the Alcoholic Beverage Control Board has been dismissed from his employment or deprived of any of his rights, benefits and privileges accorded him by reason of his public employment in the Merit System of Alabama, because of membership in any labor union. Habshey has enjoyed full Merit System status, and except to the extent that the Solomon Bill has affected his status, presently enjoys all the rights, benefits and privileges accorded under the Merit System.

The "forfeiture clause" by its terms was without force until thirty days after the effective date of the Bill. This action was instituted on October 7, 1953 — eleven days before the expiration of such thirty-day period. No State administrative or judicial proceedings are pending and the Bill is administratively and judicially undefined.

Plaintiffs contend that the challenged statute is self-executing and that it lends itself to no possible construction other than that of unconstitutionality under the Due Process Clause of the Fourteenth Amendment. They insist that they do not have to wait longer before seeking relief in a federal court, because they think that "Alabama's Legislature has used unmistakably simple, clear, and mandatory language" and that "there is neither need for interpretation of the statute nor any other special circumstance requiring the federal court to stay action pending proceedings in the State courts." Toomer v. Witsell, 334 U.S. 385, 392, 68 S.Ct. 1156, 1160, 92 L.Ed. 1460. The defendants assert among other grounds that plaintiffs have not exhausted available state administrative and judicial remedies and that consequently this court, as a matter of sound, equitable discretion, should decline to exercise jurisdiction.

The Solomon Bill concerns an important area of State administration and proclaims a broad legislative policy as to such administration. As to employees working for the State, there can hardly be any dispute that the settlement of grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work are matters for the State government to be performed through its legislative and executive departments, and are not matters for collective bargaining to be participated in by a labor union or labor organization. Section 1 of the Act defines "labor union or labor organization," and, as so defined, the Act could well be construed by the state courts simply as prohibiting a public employee from being a member of or participating in such an organization for the purpose of collective bargaining with the State and, as so construed, meet the challenge of unconstitutionality.

It is the duty of this court, as of all other federal courts, to avoid the unnecessary decision of constitutional questions. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725. In the McAdory case, the Supreme Court said:

"* * * In advance of an authoritative construction of a state statute, which the state court alone can make, this Court cannot know whether the state court, when called on to apply the statute to a defined case or controversy, may not construe the statute so as to avoid the constitutional question. For us to decide the constitutional question by anticipating such an authoritative construction of the state statute would be either to decide the question unnecessarily or rest our decision on the unstable foundation of our own construction of the state statute which the state court would not be bound to follow. Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101 at page 105, 65 S.Ct. 152 at page 154 89 L.Ed. 101; see also Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327; Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246. Such is not the function of the declaratory judgment." 325 U.S. at pages 470-471, 65 S.Ct. at page 1394.

The exercise of jurisdiction under the Federal Declaratory Judgment Act is discretionary and not compulsory. Smith v. Massachusetts Mutual Life Ins. Co., 5 Cir., 167 F.2d 990; Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620. The remedy by injunction is likewise discretionary. Peay v. Cox, 5 Cir., 190 F.2d 123.

Many recent federal...